FEDERAL COURT OF AUSTRALIA

Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) judgment be given for the first respondent and the second respondent against the applicant in relation to the whole of this proceeding on the ground that the applicant has no reasonable prospect of successfully prosecuting the proceeding.

2.    The applicant’s originating application filed 29 January 2015 be dismissed.

3.    Subject to orders 4 and 5 there be no order as to costs.

4.    If the first respondent wishes to apply for a costs order, it must give written notice of its intention to do so to the Court and the applicant within two days of this order.

5.    In the event the first respondent seeks costs, the Court will hear from the parties on the costs question on a date to be fixed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Since 1 February 2002, the South West Aboriginal Land and Sea Council (SWALSC) has been recognised, pursuant to s 203AD of the Native Title Act 1993 (Cth) (NTA), as the representative Aboriginal/Torres Strait Islander body for Perth and the remainder of the South West region of Western Australia.

2    A number of native title determination applications (Noongar claims) have been made on behalf of various groupings of the Noongar people of the South West (as well as on behalf of all Noongar people) since April 1996.

3    On 17 December 2009, the State of Western Australia signed a heads of agreement with SWALSC (on behalf of the Noongar people) aimed at resolving all Noongar claims over Perth and the South West region (settlement area) by negotiation.

4    SWALSC (on behalf of the Noongar people) and the State have now reached in principle agreement on the terms of a South West Settlement. Those terms include:

(1)    the agreement of all those Noongar people who hold or may hold native title in the settlement area to the:

(a)    surrender to the State of all native title rights and interests that might exist in relation to land and waters in the settlement area;

(b)    full and final resolution of each active Noongar claim on the basis of a making by this Court of a determination that native title does not exist in relation to the relevant application area; and

(c)    validating of all invalid acts that have been or are being carried out by or on behalf of the State in relation to the settlement area; and

(2)    in return, the provision by the State of an extensive package of benefits that has been valued at approximately $1.3 billion, which will:

(a)    be provided chiefly to the Noongar Boodja Trust, which is to be established as part of the South West Settlement, to be held on trust for the benefit of the members of the various native title agreement groups identified for the settlement area; and

(b)    include the enactment by the State Parliament of legislation recognising the Noongar people as the traditional owners of the settlement area.

5    It is proposed to implement the South West Settlement through a series of indigenous land use agreements (ILUAs) to be entered into under Subdiv C of Div 3 of Pt 2 of the NTA. The effect of s 24EB of the NTA is that, if the parties to an ILUA, the details of which are entered on the Register of Indigenous Land Use Agreements (ILUA Register), consent to the surrender of native title rights and interests (as well as to the doing of any other “future acts” as defined in s 233) in the area covered by the ILUAs, that surrender – and those other future acts – will be valid.

6    SWALSC and the State, in order to facilitate the orderly implementation of the South West Settlement, divided the settlement area into six distinct regions, the boundaries of which broadly accord with the areas of the Noongar claims for which there is an entry on the Register of Native Title Claims (Claims Register). The intention, then, was that one ILUA would be made for each of these areas, with the six ILUAs being on the same terms (Settlement ILUAs). To this end, the following Settlement ILUAs are proposed:

(1)    “Ballardong Area ILUA”, which broadly relates to the area covered by registered Noongar claim WAD6181/1998 (Alan Jones & Ors v State of Western Australia & Ors (Ballardong)) (Ballardong claim);

(2)    “GKB Area ILUA”, which broadly relates to the area covered by registered Noongar claim WAD6274/1998 (Lorraine Belotti & Ors v State of Western Australia & Ors (Gnaala Karla Booja)) (GKB claim);

(3)    “SWB Area ILUA”, which broadly relates to the area covered by registered Noongar claim WAD253/2006 (William Webb & Ors v State of Western Australia & Ors (South West Boojarah #2));

(4)    “Wagyl Kaip/Southern Noongar Area ILUA”, which broadly relates to the area covered largely conterminously by registered Noongar claims WAD6286/1998 (Hazel Brown & Ors v the State of Western Australia & Ors (Wagyl Kaip)) and WAD6134/1998 (Dallas Coyne & Ors v State of Western Australia & Ors (Southern Noongar), now known as South West Area Two);

(5)    “Whadjuk Area ILUA”, which broadly relates to the area covered by registered Noongar claim WAD242/2011 (Clive Davis & Ors v State of Western Australia (Whadjuk)) (Whadjuk claim); and

(6)    “Yued Area ILUA”, which broadly relates to the area covered by registered Noongar claim WAD6192/1998 (Malcolm Ryder & Ors v State of Western Australia & Ors (Yued)) (Yued claim).

7    Each of the six Settlement ILUAs has been agreed in principle between SWALSC and the State. Attached to each of these proposed Settlement ILUAs will be a document – known as the “Settlement Terms” – that records the provisions of the settlement package summarised above. Should the Settlement ILUAs be registered on the ILUA Register, then for as long as they remain registered, s 24EA(1) provides each will both:

(1)    operate as a contract among the named parties to the agreement; and

(2)    bind all other people who hold native title in the area covered by the agreement.

8    Any decisions as to whether or not to register the Settlement ILUAs would be made by the Native Title Registrar under s 24CJ of the NTA. In that regard, SWALSC’s intention is to “certify” the applications for registration of each of the Settlement ILUAs, in performing its functions under s 203BE(1)(b) of the NTA. This will have the consequence, for each certified ILUA, that any person claiming to hold native title over the area of the ILUA in question will be entitled under s 24CI of the NTA to object to the registration of that ILUA on the ground that the requirements of s 203BE(5)(a) and (b) of the NTA were not satisfied in relation to the certification given by SWALSC.

9    Those requirements are that SWALSC, for each Settlement ILUA certified, must be of the opinion that:

(1)    all reasonable efforts have been made to ensure that all people who hold or may hold native title in relation to land or waters in the area covered by the Settlement ILUA in question (who may be referred to as the identified native title group) have been identified; and

(2)    all members of the identified native title group for the area of the relevant Settlement ILUA have “authorised” the making of the agreement.

10    Each of the Ballardong claim, GKB claim, Whadjuk claim and Yued claim (which may be called the overlapping claims) is partially overlapped by native title determination application WAD24/2011 (Mr Albert Corunna & Ors v State of Western Australia (Swan River People #2)) (SRP2 claim). Details of the SRP2 claim have not been entered on the Claims Register – that is to say, it is not registered under the NTA, unlike the overlapping claims.

11    Mr Corunna, who is one of the named persons who comprise the Applicant in the SRP2 claim, is concerned, to state his concern simply, that if the four ILUAs that overlap the land and waters the subject of the SRP2 claim should be registered, then the interests that he claims, as a member of the SRP2 claim group, will be forever lost; or at least that the registration process will ultimately have that consequence.

12    Accordingly, on 29 January 2015, Mr Corunna filed an originating application, in his own name – not as a representative proceeding or with the other named persons who comprise the Applicant in the SRP2 claim – seeking two declarations that:

(1)    the Applicant and members of the Swan River People claim group are a party to each of the four overlapping ILUAs (Gnaala Karla Booja, Yued, Ballardong and Whadjuk) (overlapping ILUAs); and

(2)    the Applicant, along with members of the Swan River People claim group, is required to separately authorise, under s 251A of the NTA, any proposed ILUAs affecting their rights and interests in the Swan River People claim area.

13    SWALSC and the State have each applied for summary judgment, pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), on the basis that Mr Corunna’s proceeding has no reasonable prospect of being successfully prosecuted, discloses no reasonable cause of action or is an abuse of process. Alternatively, SWALSC says that the proceeding should be stayed.

14    Mr Corunna has clarified the relief he seeks and proposed that if the Court and the parties considered it necessary or helpful, he would amend his application by deleting (1) and (2) and replacing them with the following proposed declaration:

The Applicant, as a member of the Swan River People # 2 claim group is entitled to participate in a separate authorisation process with regards to the proposed Gnaala Karla Booja, Yued, Ballardong and Whadjuk Indigenous Land Use Agreements.

15    SWALSC raises three issues as to why Mr Corunna’s proceeding should be struck out:

(1)    Mr Corunna does not, as an individual, have standing to maintain the proceeding he has commenced;

(2)    the proceeding instituted is an abuse of process in that Mr Corunna seeks to maintain a case that is inconsistent with the formal position he has taken in other proceedings and in other forums; and

(3)    the NTA does not require separate groups to authorise ILUAs separately.

16    The State does not rely on the abuse of process point, but says Mr Corunna’s proceeding should be struck out on the basis he does not have standing to maintain it and there is no requirement under the NTA for him to participate in a separate decision-making process to authorise the making of the proposed overlapping ILUAs.

17    In the circumstances, the substantive question that arises on the summary judgment applications is whether Mr Corunna, as a member of the SRP2 claim group, is entitled to participate in a separate authorisation process with regards to the proposed overlapping ILUAs.

18    For the reasons given below, the Court considers that, at this stage of the authorisation and registration process that applies or will apply in respect of the relevant ILUAs, Mr Corunna is not entitled to a substantive declaration of the type he seeks. His proceeding is, in that sense, premature and has no prospects of succeeding. As a result SWALSC and the State are thereby entitled to have summary judgment entered in their favour.

19    Mr Corunna will, however, be entitled under the NTA in due course to object to the registration of the overlapping ILUAs under the NTA, if he so desires.

20    In those circumstances, on a summary judgment application like this, the Court considers it unnecessary to determine the other issues which have been raised concerning standing and abuse of process.

Is Mr Corunna, as a member of the SRP2 claim group, entitled to seek a declaration that he is entitled to participate in a separate authorisation process with regards to the proposed ILUAs in the particular factual circumstances of this case?

21    By s 31A of the Federal Court of Australia Act the Court may grant summary judgment where it is satisfied that a party has no reasonable prospect of successfully prosecuting the proceeding.

22    In Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 the plurality (Hayne, Crennan, Kiefel and Bell JJ) at [60] said of the expression “no reasonable prospect” that full weight must be given to it as a whole. Their Honours confirmed that the power to dismiss an action summarily is not to be exercised lightly, but their Honours also emphasised that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes. Thus, s 31A(3) provides that the certainty of failure (“hopeless” or “bound to fail”) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action.

23    The position currently is that Mr Corunna, not in a representative proceeding and not as one of the named Applicants who has brought the unregistered SRP2 claim, and prior to any application having been made for the registration of the relevant overlapping ILUAs, which indeed are yet to be formalised, seeks a declaration that he is entitled to participate in a separate authorisation process, in effect, with regard to those ILUAs.

24    The real question in the circumstances is whether there is any entitlement under the NTA ILUA authorisation and registration procedures for a person in Mr Corunna’s position, as a member of an unregistered native title claim group, to seek the type of relief he seeks at this stage.

25    Another way of putting the question is whether, at this stage of the events, in circumstances where a person in Mr Corunna’s position would appear to have a statutory entitlement to object to registration of the relevant ILUAs on the basis that he has not authorised them, this current proceeding is premature or hypothetical.

26    The answer to these questions is to be discovered in the detail of the process, provided for in the NTA, for the making and registration of an ILUA.

27    In this case, the ILUAs in question are of a type known as indigenous land use agreements (area agreements).

28    Subdivision C of Div 3 of Pt 2 of the NTA specifically deals with these types of ILUAs.

29    Section 24CA provides that an agreement meeting the requirements of ss 24CB to 24CE is an ILUA.

30    Thus, an ILUA of this sort is a statutory creation and has legal effect according to the terms of the NTA.

31    Section 24CB provides for the coverage of area agreements. There is no dispute in this proceeding that the proposed ILUAs that concern Mr Corunna are about one or more of the matters in relation to an area referred to in s 24CB.

32    Section 24CC provides that the agreement must not be made if there are registered native title bodies corporate in relation to all of the area concerned. Again, there is no dispute in this case that there are no such registered native title bodies corporate.

33    Section 24CD provides who the parties to an area agreement ILUA may be, as follows:

Native title group to be parties

(1)     All persons in the native title group (see subsection (2) or (3)) in relation to the area must be parties to the agreement.

Native title group where registered claimant or body corporate

(2)     If there is a registered native title claimant, or a registered native title body corporate, in relation to any of the land or waters in the area, the native title group consists of:

(a)     all registered native title claimants in relation to land or waters in the area; and

Note 1: Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.

Note 2: The agreement will bind all members of the native title claim group concerned: see paragraph 24EA(1)(b).

(b)     all registered native title bodies corporate in relation to land or waters in the area; and

(c)     if, for any part (the non-claimed/determined part) of the land or waters in the area, there is neither a registered native title claimant nor a registered native title body corporate—one or more of the following:

(i)     any person who claims to hold native title in relation to land or waters in the non-claimed/determined part;

(ii)     any representative Aboriginal/Torres Strait Islander body for the non-claimed/determined part.

    Native title group where no registered claimant or body corporate

(3)     If subsection (2) does not apply, the native title group consists of one or more of the following:

(a)     any person who claims to hold native title in relation to land or waters in the area;

(b)     any representative Aboriginal/Torres Strait Islander body for the area.

    Other native title parties

(4)     If the native title group is covered by subsection (2), one or more of the following may also be parties to the agreement:

(a)     any other person who claims to hold native title in relation to land or waters in the area;

(b)     any representative Aboriginal/Torres Strait Islander body for the area.

    Government parties

(5)     If the agreement makes provision for the extinguishment of native title rights and interests by surrendering them to the Commonwealth, a State or Territory as mentioned in paragraph 24CB(e), the Commonwealth, State or Territory must be a party to the agreement. If the agreement does not make such provision, the Commonwealth, a State or a Territory may still be a party.

Other parties

(6)     Any other person may be a party to the agreement.

Procedure where no representative body party

(7)     If there are any representative Aboriginal/Torres Strait Islander bodies for any of the area and none of them is proposed to be a party to the agreement, a person in the native title group, before entering into the agreement:

(a)     must inform at least one of the representative Aboriginal/Torres Islander bodies of its intention to enter into the agreement; and

(b)     may consult any such representative Aboriginal/Torres Strait Islander bodies about the agreement.

Note:     The registration of agreements that are certified by a representative Aboriginal/Torres Strait Islander body is facilitated under section 24CK.

34    By subs (2)(a), if there is a registered native title claimant, as there is in this case (being the claimants in the four overlapping claims) the native title group consists of all registered native title claimants in relation to land or waters in the area.

35    Subsection (2)(b) has no application in this case.

36    Subsection (2)(c) has no application in this case. There is no “non-claimed/determined part” and so the native title group does not, for example, consist of “any person who claims to hold native title in relation to land or waters in the area”, to which subs (3)(a) refers.

37    Therefore, to make the relevant point in this case, Mr Corunna (or the formal Applicant in the SRP2 claim) does not fall within the expression “native title group” for the purposes of s 24CD.

38    By s 24CD(1) it is all persons in the native title group in relation to an area who must be parties to the agreement. Mr Corunna is not one of them; nor is the Applicant in the SRP2 claim, or the SRP2 claim group.

39    Thus, in this case, it is the registered native title claimants, being those in the four registered overlapping claims, that must be parties to the relevant ILUAs.

40    It should also be observed in passing that s 24CD(3) does not apply in this case as subs (2), by subs (2)(a), does apply.

41    Section 24CD(4) further provides that if the native title group is covered by subs (2), as it is here, then one or more of the following may also be parties to the agreement:

(a)    any other person who claims to hold native title in relation to land or waters in the area;

(b)    any representative body for the area.

42    In this case SWALSC, as the representative body for the area, is proposed to be a party to the relevant ILUAs.

43    No provision has been made for any other person who claims to hold native title in relation to the land or waters in the area, such as Mr Corunna, to be a party. It is clear that s 24CD(4)(a) facilitates any such person becoming a party to such an ILUA, but does not entitle such a person to insist on the right to be party to such an agreement.

44    Section 24CD(5) further provides that where an agreement makes provision for the extinguishment of native title rights and interests by surrendering them, for example, to the State, as mentioned in s 24CB(e), then the State must be a party to the agreement. That is proposed in this case in relation to each of the relevant ILUAs.

45    Section 24CD(6) also provides that any other person may be a party to the agreement. Again, this does not entitle any other person to become a party to such an agreement by right, but facilitates that happening in an appropriate case.

46    It may also be noted that s 24CD(7) provides that if there are any representative bodies for the area and none of them is proposed to be a party to the agreement, a person in the native title group, before entering into the agreement, must inform at least one of the representative bodies of its intention to do so and may consult a representative body about the agreement. That provision is not relevant here as the representative body for the area is proposed to be a party to the relevant ILUAs.

47    The question that then arises is what effect the making of such an area agreement ILUA has.

48    Stated shortly, if registered, by s 24EA(1), as stated above, the ILUA operates as a contract among the parties to the agreement and binds all other people who hold native title in the area covered by the agreement. In that event, a person such as Mr Corunna would be a party and bound.

49    But first, the ILUA must be registered. Section 24CG provides for the registration of area agreement ILUAs. By subs (1), any party to the agreement may, if all the other parties agree, apply in writing to the Registrar, appointed under the NTA, for the agreement to be registered on the ILUA Register.

50    The application must be accompanied by a copy of the agreement and any other prescribed documents or information, by virtue of s 24CG(2).

51    By s 24CG(3), the application must also either:

(a)    have been certified by the relevant representative body under s 203BE(1)(b) in relation to the area; or

(b)    include a statement to the effect that the following requirements have been met:

(i)    all reasonable efforts have been made (including by consulting all representative bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified;

(ii)    all of the persons so identified have authorised the making of the agreement;

together with a further statement briefly setting out the grounds on which the Registrar should be satisfied that the requirements are met.

52    In this case, it is proposed, although this has not yet happened, that the application will be certified by SWALSC, as the representative body performing functions under s 203BE(1)(b) in relation to the area.

53    Thus, the requirement that would otherwise be imposed by s 24CG(3)(b) will not apply in this case.

54    Where an application for registration of such an area agreement ILUA is made, by s 24CH(1) the Registrar must give notice of the agreement, in accordance with subs (2), to a range of persons or entities who are not parties to the agreement. In this case, if SWALSC makes the application as proposed, those other parties will include the Commonwealth Minister, any local government bodies for the area covered by the agreement and “any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate”. The public must also be notified in the “determined way of the agreement in accordance with subsection (2)”.

55    By s 24CH(2)(d)(i) the notice so issued must include a statement that, within the notice period of three months after the notification day, if the application was certified by a representative body (as proposed here), any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement, on the ground that the requirements of s 203BE(5)(a) and (b) were not satisfied in relation to the certification.

56    Section 24CI confirms the right to make objections against registration on these grounds. Subsection (1) provides that, if the application was certified by a representative body, any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of s 203BE(5)(a) and (b) were not satisfied in relation to the certification.

57    Section 203BE(5)(a) and (b) – which deals with certification functions of a representative body – provides as follows:

(5)     A representative body must not certify under paragraph (1)(b) an application for registration of an indigenous land use agreement unless it is of the opinion that:

(a)     all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and

(b)     all the persons so identified have authorised the making of the agreement.

Note: Section 251A deals with authority to make the agreement.

58    Section 203BE(1)(b) generally gives a representative body the certification function:

to certify, in writing, applications for registration of indigenous land use agreements relating to areas of land or waters wholly or partly within the area for which the body is the representative body.

59    Thus, on any application made by SWALSC for registration of the proposed ILUAs in this case, it will need to provide certification and will not be able to do so unless it has formed the opinions as to the matters referred to in s 203BE(5)(a) and (b).

60    The right of any person claiming to hold native title in relation to any of the land or waters in the area covered by an agreement to make an objection, provided by s 24CI(1), does not appear to be limited to the formation of the opinion of the representative body – SWALSC in this case – but expressly permits objection “on the ground that the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied in relation to certification” (emphasis added).

61    In other words, it is plain enough that a person entitled to object may object on the grounds that:

(1)    all reasonable efforts have not been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and/or

(2)    all the persons so identified have not authorised the making of the agreement.

62    In my view, there can be no doubt that if, in due course, SWALSC applies for the registration of the relevant ILUAs in this case, and Mr Corunna wishes to object to the registration, then he may do so and, at least, may object that he, having been identified as a person who holds or may hold native title in relation to land or waters in the area covered by the ILUAs (as he has been been so identified by the materials currently before the Court), has not authorised the making of the agreement.

63    At this stage of what might be called the intended registration process, no right of objection to the proposed application for the proposed registration of the proposed overlapping ILUAs is provided for by any provision of the NTA. This is because both the ILUAs and the applications for their registration are yet to be made. Accordingly, the time has not yet arrived for anyone to object to registration of the ILUAs.

64    A person who might have the right to object to registration, pursuant to s 24CI(1), must necessarily await the statutory time for doing so – following publication or notice by the Registrar and the invitation to make objections.

65    There is no other provision in the NTA which provides for a member or the members of the claim group of an unregistered native title determination application – such as Mr Corunna and the SRP2 claim group – by virtue of that status, to be separately involved in either the relevant ILUA-making process or the authorisation of the making of such an agreement.

66    Indeed, the relevant provisions governing the making of the ILUAs and their authorisation, particularly where a representative body is involved in the process and must give a certification in terms of s 203BE(5), are such that it will be those persons, who have rights through the relevant registered native title claimants, who seek to make the relevant ILUAs and who are to give the necessary authorisation. Mr Corunna, on the material before the Court, would appear to have had the right to be involved in the authorisation process by virtue of his status as a member of a registered overlapping claim. Mr Corunna has stated, however, that he has chosen not to participate in the authorisation procedures that have been undertaken in relation to the proposed ILUAs.

67    The question whether Mr Corunna, as a member of the SRP2 claim group, is entitled to participate in a separate authorisation process with regard to the overlapping ILUAs at this stage of the events revealed above may then be resolved by reference to the relevant provisions of the NTA, considered above. It is unnecessary to consider further whether Mr Corunna may rely on the decision of this Court in Kemp v Native Title Registrar [2006] FCA 939; (2006) 153 FCR 38, or whether QGC Pty Ltd v Bygrave [2011] FCA 1457; (2011) 199 FCR 94 is applicable in relation to members of an unregistered native title claim group in the particular circumstances of this case, where the time for making a statutory objection has not yet arrived.

68    In these particular circumstances, there is no right in Mr Corunna, as a member SRP2 claim group, to separately authorise the proposed ILUAs at this stage of the authorisation and registration process. Thus, the answer to the question that he effectively poses is, no – he is not entitled to a declaration at this stage that he is entitled to separately authorise the proposed ILUAs involving the Gnaala Karla Booja, Yued, Ballardong and Whadjuk.

69    Mr Corunna will have the right, at the time SWALSC applies to register the relevant ILUAs and the Registrar gives notice of the ILUAs, to object on the grounds spelt out in s 203BE(5)(a) and (b) of the NTA, if he so desires.

70    In that sense, the objection that Mr Corunna currently wishes to make to the registration of the proposed overlapping ILUAs is premature. It is not appropriate for the Court, in this proceeding, in relation to the authorisation of the proposed ILUAs, to entertain questions as to who holds what, if any, native title rights, in relation to the areas covered by them, whether or not all persons holding native title rights have been identified, and whether all persons so identified have authorised the making of the relevant ILUAs. At the present time, it may reasonably be said these types of legal issues are hypothetical, as there has not yet been any application to register the proposed ILUAs. Indeed, the ILUAs are yet formally to be made.

Should summary judgment be entered?

71    Given that the only declaration that Mr Corunna claims in his originating application is a declaration that he, as a member of the unregistered SRP2 claim group, is entitled separately to authorise the proposed overlapping ILUAs, which is sought at a time when the relevant agreement-making and registration procedures under the NTA are incomplete, the Court concludes that there is no reasonable prospect of Mr Corunna succeeding on his originating application.

72    This is an issue that can be resolved as a strict question of law, independent of any findings as to disputed facts. It is appropriate to enter summary judgment.

73    Accordingly, pursuant to s 31A(2) of the Federal Court of Australia Act, Mr Corunna’s originating application should be dismissed on the applications of SWALSC and the State, and there will be orders accordingly.

74    The Court notes that the State does not seek the costs of its interlocutory application, although SWALSC apparently does seek costs.

75    Unless SWALSC indicates within two days of this judgment and orders that it wishes to press for a costs order, there will be no order as to costs on its interlocutory application.

76    If SWALSC presses for a costs order, the Court will hear oral submissions on the costs question on a date to be fixed.

Orders

77    The Court orders as follows:

(1)    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) judgment be given for the first respondent and the second respondent against the applicant in relation to the whole of this proceeding on the ground that the applicant has no reasonable prospect of successfully prosecuting the proceeding.

(2)    The applicant’s originating application filed 29 January 2015 be dismissed.

(3)    Subject to orders 4 and 5 there be no order as to costs.

(4)    If the first respondent wishes to apply for a costs order, it must give written notice of its intention to do so to the Court and the applicant within two days of this order.

(5)    In the event the first respondent seeks costs, the Court will hear from the parties on the costs question on a date to be fixed.

Associate:

Dated:    20 May 2015